Local
Planning Authorities may be liable for negligent planning decisions. Lane
v New Forest District Council 2001 3 All ER 914

The
Court of appeal has refused to strike out a claim against New Forest
District Council (NFDC) as having no realistic prospect of success and
held that where a Local Planning Authority ".....require or permit
development which is forseeably dangerous it was far from clear... [they]
... would be immune from liability".

There
was no reason why the planning process would be adversely affected by
making the planning authority potentially liable to an action in
negligence where they failed to take a precaution (for example imposing
conditions) to prevent damage or injury.

The
facts of the case were that the Council required a footpath to be created
as part of a permission granted in 1985. That footpath was intended
to link with a footpath on the far side of a road in a location where
visibility for crossing that road was extremely limited. It was
accepted by all parties that additional sight lines were required but
there was no condition preventing the opening of the footpath prior to the
provision of these sight lines. In fact the footpath was required to
be constructed prior to the main development being commenced and was
indeed opened before the sight lines were provided. Subsequently the
claimant was injured while crossing the road.

Although
the District Judge at first instance upheld an application on behalf of
the Council that there were no real prospects of succeeding in the claim,
the Court of Appeal rejected that view entirely. On appeal the Court
commented that the claimant did not just have a realistic prospect of
establishing a claim in negligence, but a "positively powerful
case". The judgement is all the more remarkable as the Council
asserted it had immunity because it was exercising its statutory planning
functions, but that argument was overruled.

Planning
authorities will need to take careful note of this decision.
Although it does not decide the substantive issue it does pave the way for
claims by third parties where they have suffer damage or injury as a
result of poor planning decisions. In particular planning
authorities should be cautious when they decide to grant permission in the
face of advice from the Highways Authority which highlights dangers.
It will be even more important to scrutinise conditions carefully to
ensure they do not allow potential dangerous situations arising especially
where development is phased.